In Mielo v. Steak ‘N Shake Operations, Inc. 2018 WL 3581450 (3rd Circuit 2018) the Third Circuit took a close look at lawsuits seeking to require not just that a facility be made accessible, but also that the defendant be required to adopt policies assuring future accessibility. This is an important issue for defendants because a claim for the imposition of a policy is a good way for a plaintiff to avoid mootness. Physical ADA defects can often be easily and cheaply fixed. Once fixed claims for an injunction to fix the defects are moot and the plaintiff’s attorney loses his chance to be paid. Adopting a policy, on the other hand, is unlikely to moot a policy based claim because policies can be easily undone and mootness requires some assurance that the supposed fix will remain in place. At the end of the day the Court allowed the policy claims to stand until the merits were further developed. Its reasoning and mistakes are worth a close look.

Is policy based relief available under the ADA?

The Third Circuit comes very close to holding that an injunction requiring the adoption of a policy is not available under the ADA, writing that:

In light of our inability to fully engage the merits at this stage of the litigation, we are not at liberty to decide whether Plaintiffs’ novel interpretation of the ADA and its corresponding regulations would survive a dispositive motion under either Rule 12(b)(6) , or Rule 56 of the Federal Rules of Civil Procedure .

It is notable that the Court leaves open the possibility of a Rule 12(b)(6) motion because before this appeal the case had proceeded well past the early dismissal phase. By twice calling the plaintiffs theories “novel” the Court may be suggesting that the defendants go ahead and challenge the claims when the case is remanded.

This hint, however, should not have been required. The injunctive relief available under the ADA is limited to “an order to alter facilities” and if necessary “requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods.” “Modification of a policy” refers back to the reasonable modification requirement in 42 U.S.C. §12182(b)(2)(A)(ii). That portion of the statute does not require the creation of new policies. In addition, any policy requiring that a business find and remove barriers to access would be redundant because the statute already requires this. The policy demanded by the plaintiffs in Steak ‘n Shake would say, in essence, “it is our policy to obey the law.” In fact, the policy the plaintiff wanted would have required less than the statute already requires. The plaintiffs wanted a policy requiring annual ADA inspections and remediation. Right now the ADA requires immediate remediation of architectural barriers – you can’t wait to do it once a year. A policy requiring Steak ‘n Shake stores to do less than the law permits hardly seems worthwhile.

The plaintiffs claimed that the desired policy would implement the requirement in 28 C.F.R. §36.211 that “those features of facilities and equipment that are required to be readily accessible” be maintained “in operable condition.” The plaintiffs argued, in essence, that every part of the facility was required to be readily accessible and therefore the regulations required regular maintenance of sidewalks, parking spaces and other potential architectural barriers. While the Court refused to consider the question, the statute and other regulations make it clear this regulation does not impose an obligation to maintain of the accessibility of an entire facility. It is the “features” that must be maintained in operable condition, not the facility, and of course “operable condition” hardly applies to things like parking spaces and sidewalks that one may use, but does not “operate.”

At the end of the day what the plaintiffs wanted was a policy that would affirm Steak ‘n Shake’s obligation to follow the law. Requiring such a policy is no different than ordering the defendant to follow the law, a kind of injunction courts almost aways refuse. Belitskus v. Pizzingrilli, 343 F.3d 632, 650 (3d Cir.2003).

Standing to seek policy based relief.

After finding that policy based relief was possible in theory the Court turned to whether the plaintiffs had standing to seek this relief. The Court begins with a useful summary of the requirements of ADA standing. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant and (3) that is likely to be redressed by a favorable decision.” It begins its discussion with the “injury in fact” requirement.

The Court first observes that “bare procedural or technical violations of a statute” do not create the kind of concrete harm required to show an injury in fact. Thus, it finds the plaintiffs cannot rest their claims on the mere non-existence of the desired policy; they are required to show that the lack of a policy caused them harm. The Court finds the plaintiffs have suffered the requisite concrete harm based on their alleged difficulties ambulating through allegedly non-compliant parking facilities. This is unremarkable. Difficulty navigating a facility is precisely the kind of harm the ADA was meant to prevent.

The Court next asks whether this harm is “fairly traceable” to the supposed misconduct; in this case, not having an ADA maintenance policy. It analogizes the “fairly traceable” requirement to the “but for” causation element of tort cases. Here the Court finds that the bare allegation that defendant’s conduct “caused” their injury is the equivalent of a pleading that “but for” the absence of a policy they would not have been injured. That bare assertion is precisely the kind of “a formulaic recitation of the elements of a cause of action” the Supreme Court found inadequate in Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). Without some explanation of how the lack of a policy caused the plaintiffs’ specific injury the claim should have been dismissed.

This is especially true given the uncertain link between any policy and the plaintiff’s harm. The plaintiffs’ theory assumes that the parking lot was originally in compliance with the ADA, then fell out of compliance at some later date, and would have been remediated before the plaintiffs visited if an annual inspection policy had been in place. This is a rather long string of facts to be incorporated by implication in the word “caused.”*

The Court almost rejects the existence of redressability, observing that an injunction requiring only the adoption of a policy would not guarantee that the policy was followed and would not therefore assure that the plaintiffs would not encounter the same conditions in the future. Here again the Court is willing to stretch to permit the lawsuit to continue, finding that it is at least “likely” that the requested injunction will prevent future harm because “nothing suggests” individual stores would violate the policy, and that the district court would retain jurisdiction for some time “to address any potential failures by Steak ‘n Shake” fix problems found by the policy.

The immediate logical flaw in this argument comes from the district court’s continuing jurisdiction. So long as the district court maintains jurisdiction to require Steak ‘n Shake to remediate any barriers to access a policy requiring remediation is superfluous. It is the court, not the policy, that will prevent future injury. After the district gives up its continuing jurisdiction the likelihood that the policy will be effective depends on the policy being more effective in encouraging ADA compliance than the existing statutory requirement. It is hard to imagine that individual store managers who have not followed the law will be more likely to follow a mere corporate policy.

Even if it is assumed the policy will be followed more strictly than the law, finding that it is likely to redress the alleged potential future injury requires a considerable leaps between the links in the chain of causation. The plaintiffs were already asking for an injunction to require remediation of existing problems, so the starting point for how the policy might affect them in the future is all Steak ‘n Shakes being in compliance with all ADA standards. To prove the policy will redress the potential future injury to the plaintiffs they must prove it is (1) likely the facilities will fall out of compliance with ADA standards at a time when they are still likely to visit the store but after the court loses continuing jurisdiction, (b) the desired annual inspections for ADA violations will detect the out of compliance condition and (c) the condition will be corrected before the plaintiffs again visit the store. For parking lots and parking places required maintenance is unlikely to be necessary for years, so this chain of causes requires looking many years into the future to consider injuries not to disabled persons in general, but to these specific plaintiffs. Arguing that an ADA policy will redress future injuries is no more than speculation.

The Third Circuit came close to rejecting the entire idea that the ADA would support an injunction ordering that public accommodations adopt specific ADA compliance policies. It should have taken the last step and found that the ADA does not require any business to have a an ADA compliance policy. The statute does not require it and a mere policy is unlikely to redress future injuries because it is does no more than affirm the existing obligation to follow the law.

* In the word of the Supreme Court, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.” Id.